DC Circuit Approves NLRB Decision Striking Down Handbook Rules
December 30, 2015 by Andrew Baker
The NLRB in recent years has aggressively reviewed employee handbook rules to determine whether the rules unlawfully interfere with employee rights to act collectively about their working conditions and to form and join unions. If the Board finds that a rule runs afoul of the law, the Board will order the employer to remove the rule from the handbook, even if there’s no evidence the employer has applied the rule to interfere with protected employee rights.
The DC Circuit Court of Appeals recently approved another of these Board decisions. In this case, the NLRB found four rules maintained by Hyundai Shipping to be unlawful. The Court upheld the Board’s decision on three of the four rules.
The rules deemed invalid were: (1) a prohibition on employees revealing information about any matters “under investigation”; (2) an electronic communications rule that concluded with the requirement that “employees should only disclose information or messages from these systems to authorized persons”; and (3) a disciplinary rule forbidding employees from “performing activities other than Company work during working hours.”
The first two rules, the Board and Court concluded, were overbroad and unlawfully prohibited employees from discussing working conditions with each other. The third rule violated the Board’s traditional distinction between lawful employer bans on union activities during “working time” – interpreted to exclude breaks from the scope of the rule – and unlawful bans during “working hours” – interpreted to include break time. Since employers cannot ban union activities during break times, and thus can’t ban union activities during “working hours,” the Hyundai rule banning anything but work, and thus banning union activities, during “working hours” did not withstand legal scrutiny.
The fourth rule addressed employee complaints: “Voice your complaints directly to your immediate supervisor or to Human Resources through our ‘open door’ policy. Complaining to your fellow employees will not resolve problems.” The Court interpreted this rule as merely a suggestion, and not a mandatory requirement barring employees from taking their complaints to someone other than management. As such, the Court concluded, the rule did not unlawfully interfere with employee rights.
The right of non-union employees to talk to each other and share information about their working conditions is the seedbed of unions. Employer rules that intimidate unrepresented workers in the exercise of this crucial right crush the goal of federal labor law. Please contact one of our offices if you have questions about the employee handbook rules at your workplace.
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